O'Brien v. Board of License Commissioners

ZARNOCH, J. Appellants, Adam O’Brien and DeCourcy’s Pub, LLC (“O’Brien”) brought a hybrid action pro se in the Circuit Court for Washington County to gain the right to renew and transfer a Class D alcoholic beverages license. With elements of mandamus, injunction and petition lor judicial review, this hybrid, even if it were powered by gas, electricity or good, old-fashioned elbow grease, could not arrive at appellants’ desired destination. In addition, we conclude that O’Brien’s customized method of travel in this litigation — administrative mandamus — is simply a non-starter. For reasons set forth below, we affirm the decision of the circuit court rejecting O’Brien’s challenge and upholding the actions of appellee Board of License Commissioners for Washington County (“the Board”).

FACTS AND PROCEEDINGS In October of 2006, Sharon and Michael Turner, owners of Chasers Bar and Grill, 139 North Mulberry Street in Hagers-town, sold their business to Adam and Christine O’Brien. O’Brien planned to operate an establishment known as De-Courcy’s Pub at that address and set up a limited liability company for that purpose. However, complications soon arose. ⁵⁶⁶ Apparently, before the liquor license could be transferred, O’Brien had to overcome residency issues. Under the Rules of the Board of License Commissioners for the County (“the Board”): If an appellant does not meet the residence requirements above or is not a registered voter in Washington County because he/she is not a resident of the County, then the appellant shall appoint a person who meets these requirements as a resident agent for the license and give him/her at least a one percent (1%) interest in the entity (corporation) that owns the business.

BLC-005(c). To comply with this rule, O’Brien named Sharon Turner (“Turner”) as “resident agent” with a one percent interest in DeCourcy’s Pub, LLC. 1 Thus, Turner’s name, as well as O’Brien’s, was included on the license. In addition, landlord-tenant problems surfaced. The Turners had leased the Mulberry Street property from William Marlow until August 2009, and Marlow was not willing to substitute O’Brien as a tenant.

However, he appeared to be agreeable to allowing the Turners to sublease to O’Brien. As a result, in December 2006, an “addendum to Sales Contract” was entered into between the Turners and Adam O’Brien, which among other things: 1) acknowledged that Marlow would not release the Turners from the lease obligation; 2) subleased the property and set the monthly rent; 3) required O’Brien to pay real estate taxes; 4) set no term for the expiration of the lease 2 ; 5) provided that if a default occurred because of a failure to pay rent, the Turners “would have the right to exercise immediate possession and ownership of the business .... ” 3 ⁵⁶⁷ Subsequently, the Board approved O’Brien’s application for a transfer of the license, and, evidently, renewals of the license in 2007 and 2008. 4 However, all did not go well for DeCourcy’s Pub: neighbors complained about the noise; an attempt to lay the ground for moving the business to a new location stalled; and O’Brien was under financial stress. At an April 30, 2008 meeting of the Board, these problems surfaced. 5 O’Brien said: Well, the plan is to try to move the liquor license, once the lease has been fulfilled, to a commercial area, get it out of the residential area to try to just get the neighborhood off our back, really. I don’t see how it’s gonna get a whole lot better.

We’re gonna do the best we can in the meantime to control the problems, noise being the main one. But first and foremost I have to take care of my lease and then after that, that’s when I would want to come talk to you guys about any opportunity that I have to move within [the] voting district to a more commercial area. Turner stated that when she asked O’Brien whether he was going to pay the rent, his response was “Your rent? I don’t have any money.” She added that she had paid the personal property taxes for O’Brien’s limited liability company.

Turner said that she discussed the proposed move with the owner of ⁵⁶⁸ the building who said he would not let O’Brien out of the lease, “because he’s not a very good tenant and he’s not maintaining the property.” Also speaking at the meeting was Alan Green-wald, described in the minutes as “developer and owner of property on Franklin Street,” where apparently O’Brien sought to move. He echoed Turner’s testimony about the recalcitrance of the owner of the building. Board Chairman Robert L. Everhart responded to the witnesses: “The problem that you’re having with the landlord is not something that we have any control over or are going to be involved in, unless something changes.” Later, he added: “[U]ntil you all have a problem that affects your licensing, we’re not gonna get involved....” On July 9, 2008, O’Brien and Greenwald attended another meeting of the Board to discuss the proposed transfer to a new location. Turner was not present.

After being sworn in, the witnesses described the reasons justifying a transfer and listened to advice from Chairman Everhart about how to proceed. O’Brien and Greenwald indicated that they planned to create a new LLC before an application would be filed. Chairman Everhart said: “Well, we don’t have a problem with you putting your application in and I think, like I say, the main thing is you will have to have your LLC before you can do the advertising.” Before this new enterprise could flourish, DeCourcy’s Pub floundered. The pub closed and its liquor license was taken by representatives of the Board. 6 On January 7, 2009, Turner appeared before the Board.

She advised Board members that O’Brien “has not been paying the rent for the property, taxes or insurance.” She said she would be meeting with her lawyer “about the possibility of getting the license back.” Less than a month later, O’Brien, Greenwald and Turner (represented by counsel) were back before the Board to ⁵⁶⁹ determine, according to Chairman Everhart, “who has the license and what’s going on.” Turner stated that O’Brien had not paid the rent or the taxes 7 and that she had changed the locks on the premises. Turner’s attorney told the Board that because O’Brien defaulted on the sublease, the business belonged to the Turners. See p. 566, 23 A.3d at 325, supra. O’Brien responded that he had no intention of transferring the license to Turner and still wanted to move the license out of the neighborhood.

Chairman Everhart told O’Brien: [If] you want to make an application for a transfer, we can certainly do that. It is your license. So if that’s what you want to do, you can make an application to transfer it and I want to say up front that we don’t guarantee transfers ... The problem you have between the two of you, we don’t ...

I don’t see any involvement we have in that. Turner’s attorney asked: “[C]an the license be transferred over the objection of the resident agent?” The Chairman responded: “If the license can be transferred, yes, because it is his license.” Another commissioner made a motion that “O’Brien may apply for a transfer,” but that before any approval, Turner may assert her “full legal rights.” The motion was approved unanimously. What happened next is a little unclear. In his filings in this case, O’Brien said that he delivered the transfer application to the Board on Monday, March 2, 2009 and was told by Board Administrator Deborah L. Kirk that “there would not be any transfers in the month of March and subsequently in the month of April of 2009.” Kirk was alleged to have said that “there are no transfers in March as it is the renewal month, and that April will be violations hearings.” The transfer application was not included in the record in the circuit court or the record in this Court.

At oral argument in this Court, the Board’s counsel said that the Board had no record of receiving a transfer application. ⁵⁷⁰ Apparently acting as if it had not received the transfer application, the Board met two more times with the parties in this controversy. On both occasions the issue described in Board minutes was “LICENSE RENEWAL.” At the March 18, 2009 meeting, the following exchanges occurred: Chairman Everhart: The question that you came here for ... would you explain what your requesting is (sic). Adam Obrien: Requesting to be approved to renew the license and move forward with the transfer without Sharon Turner’s signature. Chairman Everhart: Well, you can’t move forward with the transfer.

You can move forward with renewing your license. You’ll have to renew the license before you transfer it anyhow, so it’s not gonna affect you if you don’t transfer. But that wouldn’t affect the, you know, you, as far as you getting the license. What do you have to say about ... where do you all stand on this license?

Do you have anything else you’d like to say? Adam Obrien: Not at this time. Chairman Everhart: Do you have anything? Sharon Turner: I’m not gonna sign off on the license.

I had gotten a letter from them stating that they would pay me in February 6 of 2011. Absolutely, not. I don’t want this tied up for that long. I’m not gonna do it and they sent me a thing of release.

I’m not signing anything. If he wants the license, pay me what you owe me. If he wants to go back in that building, I will hand him back the key, but why am I gonna release him or want him to get his license. He doesn’t pay his rent.

That’s back. The taxes are not paid. I’ve paid them. And I think that you guys need to step in here, either give me the opportunity to apply for this license myself, without him, because he is in default and I had the attorney here before.

You guys know if I have to take this to court, I’ll do so. After Michael Turner indicated that he would not reopen the property until the back rent and other payments were made, the Chairman said: ⁵⁷¹ Well let me ... I’ll say this, actually, and we’ve talked about this and we’re not ... We will allow the new license to be applied for.

We will not allow for her (Sharon Turner) to come off of that or will not allow it to be transferred. If it’s gonna be transferred, it’ll be done at a later time. But you could make your application for the license the way the license exists, as long as you meet some of the criteria that you have to meet. To even renew your license there’s some issues that have to be taken care of and you’ll find that out when you make your application, if you haven’t already.

There’s things on there that has to be taken care of.... When Sharon Turner asked what would happen if O’Brien did not file a renewal application by April 1st, the Chairman replied: “[T]here won’t be [any] license then. He won’t have a license April 1st.” One week later, the principal contestants were back before the Board. At this March 25, 2009 meeting, the following colloquy took place: Chairman Everhart: Do they need landlord’s signature to renew?

That’s why you’re here today, correct? Is that all? Nothing about transferring? Adam Obrien: No. I want to request that Sharon Turner’s name be taken off my liquor license.

Chairman Everhart: Okay. The way the law reads is, the fact the lease is up in August, so, consequently, you cannot take her off because, actually, if the lease was for the following year or five years and extend the lease that you have, then you would not need to have someone sign it. The fact that the lease is not for that extended period of time, the person that is on there now is the person that’s gonna be there until the lease is over. And at that time you could possibly change the names and that’s why that is.

Adam Obrien: Alright. Chairman Everhart: So, I hope you understand that. But that’s the reason it is the way it is. If the lease was for a year then that would be okay.

You could take her off. ⁵⁷² But the fact it’s only until August, it’s not for the year, and the license [is] issued for a year and we cannot issue the license for a 4 month period of time or with someone else’s signature. Any questions? Alan Greenwald: I’d just like to try and understand precisely where the conflict is because there ... Chairman Everhart: Let me say this.

I’ll tell you where the conflict is. It is the law. The law specifically states that the lease has to be for the year and that you’re gonna have the license. The lease has to be to the following April at least or any extended period after that.

It could be a 5 year lease. But the fact the lease is only good until August that you all have now, the existing lease ----we can’t issue a license for a year for a lease that’s only good for 4 months or well actually, I hope you understand that is the law. Greenwald, who now held a power of attorney in connection with DeCourcy’s Pub, LLC, argued that Turner did not have a sublease because the governing document was a “sales agreement.” See p. 566, 23 A.3d at 325, supra. Later, Chairman Everhart told O’Brien: Well, like I say, the only thing is, in all fairness, the only thing we are telling ...

The fact that she will be on until August and then you can, and we are gonna allow you to renew the license, even though technically you’re not gonna be using them [sic ] until you do transfer them I guess. I don’t know what your intent is now, but it doesn’t matter. We are gonna allow you to renew the license so that’s something that’s gonna be in your favor. However, the Chairman was less optimistic when Greenwald made it clear that the pub wanted to renew without Turner’s signature: Chairman Everhart: We’re gonna renew the application the same as it was before.

Alan Greenwald: Okay, with? If Mrs. Turner refuses to sign it, will you renew it? ⁵⁷³ Chairman Everhart: Well, I didn’t know you wasn’t gonna be signing it. Sharon Turner: I’m not signing it until I get some money. They owe me money and I’m not signing it.

Eventually, Chairman Everhart advised the parties: We’re not gonna argue what’s gonna happen or not happen. We’re telling you that if you want to renew that license, our advice would be for you to renew it and she’s gonna have to sign for you to renew it. It will be good until August and if you decide to stay there or even if you want to transfer the license, but you won’t have a license to transfer if you don’t renew the license, okay? Remember that.

The other thing being, if you should decide do you even want to stay there, at the end of August you would have to have the approval of the owner of the building at that time or whoever you leased it to at that time to go over the same thing that you’re doing now. O’Brien and Turner were unable to agree and no renewal application was filed by April 1, 2009. On May 27, 2009, more than two months after the March 25th meeting, O’Brien and DeCourcy’s Pub LLC filed suit against the Board in the circuit court. The pro se action was labeled both a “Petition for Judicial Review” at the top of the page and a “Petition of Writ of Administrative Mandamus” at the bottom.

The filing also prayed for injunctive relief. 8 O’Brien contended that the Board violated “[a]dministrative [d]uties required by law,” that its decision “not to act in a timely manner” to transfer the license was arbitrary, capricious, “a prejudicial abuse of authority” and an “unconstitutional deprivation of property.” He also asserted that the Board “misapplied the law and its own regulations,” because the licensee was “entitled to a fair transfer and renewal hearing” before the license was “dissolved.” O’Brien prayed for an “injunction ordering the immediate [t]ransfer and [r]enewal” of the license and an “in ⁵⁷⁴ junction ordering the immediate removal” of Turner’s name off the license. O’Brien also requested the Board to continue to “hold” the license until the conclusion of this litigation and the Board agreed, even though a motion to stay its decision had been denied. The parties skirmished over the inclusion in the record of a transcript of the July 9, 2008 Board meeting, whose minutes were not provided to O’Brien until after the conclusion of the circuit court proceedings, but were included in the record on appeal without objection by the Board. 9 The circuit court initially declined to grant the Board’s motion to “deny” the petition for administrative mandamus. O’Brien moved for summary judgement and the Board orally moved to dismiss at a September 25, 2009 hearing.

On October 13, 2009, the circuit court denied the petition for administrative mandamus. In its opinion, the court described the Board’s March 25, 2009 meeting as “advisory in nature” and concluded that the Board “never issued a final order denying renewal of the license.” It said that the petition for administrative mandamus was “premature in that the issues involved have never been resolved.” The court said: “This Court can neither order the Board to make Ms. Turner sign off on the renewal application nor order Ms. Turner to sign off. It is not the proper forum.” In addition, the court said that the action was untimely under the Maryland Rules because it was not filed within 30 days of the Board’s March 25, 2009 hearing. Finally, the court said: [T]he license in question lapsed on or about March 30, 2009, without any formal action taken by the Board.

Without the Petitioner — Turner issue resolved, the license’s status became jeopardized and lapsed. State law requires that a renewal application be accompanied by a statement signed by the owner of the premises consenting to renewal of the ⁵⁷⁵ license. See Art. 2B, § 10-301(ii)(2) of the Alcoholic Beverages Section of the Annotated Code of Maryland. Further, State law requires a minimum one-year lease for renewal.

See Art. 2B, § 10 — 301(h)(3) of the Alcoholic Beverages Section of the Annotated Code of Maryland. Without the resolution of the condition precedent, i.e. the lease issue, the Board’s hands were tied. The issue for all intents and purposes is moot. It is important to note that Petitioner addressed both the renewal and transfer of the license in his Petition and at the hearing; however it is clear under the law that the transfer of a license cannot occur until the renewal of the license occurs, and therefore we must only address the renewal of the license.

Subsequently, O’Brien filed a motion to alter or amend, which was denied. This appeal followed, in which O’Brien is represented by counsel. 10 QUESTIONS PRESENTED I. Did the trial court err in dismissing the petitioners’ petition for administrative mandamus and in not compelling the respondent to comply with and adhere to its own rules and regulations regarding the petitioners’ application for transfer?

II

Did the trial court err in denying and dismissing the petitioners’ petition for administrative mandamus without the benefit of a complete and accurate record of the proceedings below when the respondent failed and refused to timely process the petitioners’ timely filed application for transfer so as to deny the petitioners’ due process of law with regards to their liquor license transfer rights rendering these actions arbitrary and capricious? ⁵⁷⁶ III. Did the trial court err in docketing this action as an administrative appeal rather than as an administrative mandamus action? The Board has also filed in this Court a motion to dismiss O’Brien’s appeal, thus raising these questions: I. Is this appeal allowed by the Maryland Rules and State law?

II

Should this appeal be dismissed for failure to comply with procedural requirements of the Maryland Rules?

III

Should this appeal be dismissed as moot? DISCUSSION I. Motion to Dismiss Appeal The Board has launched a multi-pronged attack on O’Brien’s right to pursue this appeal. It contends that: 1) O’Brien cannot prove that the Board inflicted injury to his legally protected rights, acted arbitrarily and capriciously or without substantive evidence; 2) there is no final order of the Board from which judicial review could have been sought; 3) O’Brien seeks review of issues not presented at the administrative level; 4) mandamus is not an available remedy; 5) the contents of the record and record extract do not comply with the requirements of the Maryland Rules; and 6) the case has become moot because the license has expired. In our view, a number of these contentions spill over into the merits of the case; others may be grounds to affirm, but not to dismiss the appeal; and the procedural objections are insufficient grounds for dismissal. 11 The mootness issue— turning on whether the license has expired — is also colored by the merits of the appeal and is undercut to some degree by ⁵⁷⁷ the Board’s acquiescence in putting the license “on hold” until the conclusion of this litigation. 12 For these reasons, we deny the Board’s motion to dismiss this appeal.

II

Denial of Writ of Mandamus To sort out the issues on this appeal, we need to narrow our focus on the precise nature of O’Brien’s hybrid claims and the statutory provisions and Board rules that affect the outcome. A. What is the nature of O’Brien’s claims? At the outset, it is important to note the key difference between: (1) an action or complaint for administrative mandamus and a petition for judicial review of agency action; and (2) administrative mandamus and traditional mandamus. A petition for judicial review under Title 7, Chapter 200 of the Maryland Rules is authorized when judicial review of an “order or action” of an agency is authorized by statute.

Md. Rule 7-201(a). On the other hand, an administrative mandamus action is authorized to review a “quasi-judicial order or action” of an agency when review “is not expressly authorized by law.” Md. Rule 7-401(a). 13 The procedure for an action ⁵⁷⁸ for administrative mandamus mirrors those governing a petition for judicial review. A traditional mandamus action is of common law origin, but has been regulated in significant respects by the General Assembly. 14 Among its many functions are